OPEN LETTER TO THE PRESIDENT OF THE BRAZILIAN SENATE, SENATOR JOSÉ
SARNEY.

REF: CPI DO ECAD AND THE REFORM OF THE BRAZILIAN COPYRIGHT LAW

Dear Senator José Sarney,

We met in 2003, when we opened together the seminar "O Software Livre
e o Desenvolvimento do Brasil" (Free Software and the Development of
Brazil) that took place at the Brazilian Congress. I am writing to you
because Brazil's debate over copyright law has created a special
opportunity.

The Parliamentary Inquiry Commission to investigate the collecting
societies ("CPI do ECAD") has found corruption in the copyright
collecting societies in Brazil. More importantly, it has found the
copyright collecting system in Brazil is dysfunctional: it lacks
transparency, efficiency, and good governance.

Brazil is now poised to reform this system. The CPI do ECAD has
proposed legislation to require collecting societies to be transparent
and efficient, and to use the possibilities of the Internet age to
improve their services to their stakeholders and society in general.

How can the copyright collection system benefit society in general? I
would like to suggest taking this opportunity to go even further: to
legalize the sharing of published works, in exchange for a
fixed levy collected from Internet users over time.

When I say "sharing", I specifically mean the noncommercial
redistribution of exact copies of published works--for instance,
through peer-to-peer networks. The crucial case is the one where
those who are sharing receive no income from doing so; borderline
cases such as the Pirate Bay (which receives money from advertising)
need not be included.

To recognize the usefulness to society of Internet file sharing among
the citizens will be a great advance, but that plan raises a second
question: how to use the funds collected? If used properly, they can
provide a second great advance -- in support for the arts.

Publishers typically propose to use money to "compensate" the "rights
holders" -- two bad ideas together. "Rights holders" is a disguised
way of directing the money mainly to publishers, with only
trickle-down for the artists. As for "compensate", that concept is
inappropriate, because it means to pay someone for doing a job, or to
make up for taking something away from him. Neither of those
descriptions applies to the practice of file sharing, since listeners
and viewers have not hired publishers or artists to do a job, and
sharing more copies does not take anything from them. (When they
claim to have "lost" money, it is by comparison with their dreams of
what they could have got.) Publishers use the term "compensate" to
frame the issue in their favor.

There is no ethical reason to "compensate" anyone for citizens' file
sharing, but supporting artists is useful for the arts and for
society. Thus, the best way to implement a sharing license fee
system is to design it to distribute the money so as to
support the arts efficiently. With this system in place, artists will
benefit further when people share their work and will encourage sharing.

What is the efficient way to support the arts with these funds?

First of all, if the goal is to support artists, don't give the funds
to publishing companies instead. Supporting the publishers does
little to support artists. For instance, record companies pay most
musicians little or nothing of the money that comes in from sale of
records: the musicians' record contracts are cunningly arranged so
that musicians do not start to receive "their" share of record sales
until a record sells a tremendous number of copies. If file sharing
levy funds were distributed to record companies, they would not reach
the musicians. Book contracts are not quite as outrageous, but even
authors of best-sellers may get little. What society needs is to
support these artists and authors better, not to support the
publishers better.

I propose therefore to distribute the funds solely to the creative
participants, and ensure in the law that publishers cannot claim it
back from them or deduct it from money otherwise owed them.

The levy would be collected initially by the user's Internet Service
Provider. How should it travel to the artist? It might pass through
the hands of a state agency; it might even pass through a collecting
society, provided that collective societies are reformed so that any
group of artists can start their own.

Artists must not be compelled to work through the existing collecting
societies, because these may have antisocial rules. For instance, the
collecting societies of some European countries forbid their members
to publish anything under licenses that permit sharing (for instance,
they forbid using any of the Creative Commons licenses). If Brazil's
fund for supporting artists includes foreign artists, they must not be
compelled to join those collecting societies in order to receive their
shares of Brazilian funds.

Whatever chain the money follows, none of the instutions in the chain
(ISP, state agency, or collecting society) may have any authority to
alter what share goes to each artist. That should be firmly set by
the rules of the system.

But what should those rules be? What is the best way to apportion the
money among all the creative participants?

The most obvious method is to compute each artist's share in direct
proportion to her work's popularity. (Popularity can be measured by
inviting 100,000 randomly chosen people to provide the lists of the
works they have played, or by measuring peer-to-peer file-sharing.)
That's what "compensate the rights holders" proposals typically do.

But that method of distribution is not very effective for promoting
the arts, because a large fraction of the funds would go to the few
superstars, who are already rich or at least comfortable, leaving
little money to support all the artists who really need more.

I propose instead to pay each artist according to the cube root of his
or her popularity. More precisely, the system could ascertain the
popularity of each work, divide that among the work's artists to get a
figure for each artist, then compute the cube root of that figure, and
set the artist's share in proportion to that cube root.

The effect of the cube root stage would be to increase the shares of
moderately popular artists by reducing the shares of superstars. Each
individual superstar would still get more than an individual
non-superstar, even several times as much, but not hundreds or
thousands of times as much. Shifting the funds towards moderately
popular artists means that a given total sum will adequately support a
larger number of artists. Furthermore, the money will do more good
for the arts because it will go to the artists who really need it.

Promoting art and authorship by supporting artists and authors is the
proper goal of a sharing license fee because it is the proper goal of
copyright itself.

A final question is whether the system should support foreign authors
and artists. It would seem fair for Brazil to demand reciprocity from
other countries as a condition of giving support to their authors and
artists, but I think that would be a strategic mistake. The best way
to convince other countries to adopt a plan like this is not by
pressuring them through their artists--who won't feel the lack of
these payments because they are not accustomed to receiving any--but
rather by educating their artists about the merits of this system.
Including them in the system is the way to educate them.

Another option is to include foreign artists and authors but cut the
payment down to 1/10 when their coutries do not join in reciprocal
cooperation. Imagine telling an author, "You have received $50 from
Brazil's sharing license levy. If your country had a similar sharing
license levy and made a reciprocal agreement with Brazil, you would
have received $500 from Brazil just now, plus the amount from your own
country." These authors and artists would start to advocate the system
in their own country, plus reciprocity with Brazil.

I know of one possible impediment to adopting this system: Free
Exploitation Treaties such as the one which established the World
Trade Organization. These are designed to make governments act for
the benefit of business rather than the people; they are the enemies
of democracy and of most people's well-being. (We thank Lula for
saving South America from ALCA.) Some of them demand "compensation
for rights holders" as part of their general policy of favoritism for
business.

Fortunately this impediment is not unsurmountable. If Brazil finds
itself compelled to pay for the misguided goal of "compensating rights
holders", it can still adopt the system presented above _in addition_.

The first step towards ending an unjust dominion is to deny its
legitimacy. If Brazil is compelled to "compensate rights holders", it
should denounce that imposition as wrong, and yield to it only until
it can be abolished. The denunciation could be stated in the preamble
of the law itself, like this:

Whereas Brazil wishes to encourage the useful and helpful
practice of sharing published works on the Internet.
Whereas Brazil is compelled by the World Trade Organization to
ransom this freedom from the rights holders, even though that
money will mainly enrich publishers rather than supporting
artists and authors.
Whereas Brazil is not yet ready to break with the World Trade
organization and not currently in a position to replace it with a
just system.
Whereas Brazil wishes, aside from that imposed requirement, to
support artists and authors better than the existing copyright
system does.

The wasteful, misdirected plan for "compensation" need not exclude the
useful, efficient plan to support the arts well. Thus, implement the
plan suggested above to support artists directly, for the good of
society, and implement in parallel the "compensation" required by the
WTO--but only so long as the WTO retains the power to impose it.
The law could even say that the "compensation" system will be
discontinued when no treaty requires it.

This will begin the transition to a new copyright system that suits
the Internet age.

Thank you for considering these suggestions.

Copyright (c) 2012 Richard Stallman Verbatim copying and
redistribution of this entire page are permitted provided this notice
is preserved.